December 13, 2018
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Taking apart the legal arguments on Maine’s ranked-choice voting system

Robert F. Bukaty | AP
Robert F. Bukaty | AP
U.S. Rep. Bruce Poliquin, R-Maine, speaks at a news conference, Tuesday, Nov. 13, 2018, in Augusta, Maine. Poliquin filed a federal lawsuit Tuesday against Maine Secretary of State Matthew Dunlap in an attempt to stop a tabulation of ranked-choice ballots in his race against Democratic challenger Jared Golden.

Good morning from Augusta. A judge will hold a hearing today in U.S. Rep. Bruce Poliquin’s lawsuit to get the state to stop a ranked-choice voting count in Maine’s 2nd Congressional District that could tilt the race to Assistant Maine House Majority Leader Jared Golden.

Secretary of State Matt Dunlap said on Tuesday that the ranked-choice count that will determine the winner of the race between Poliquin, a two-term Republican, and Golden, a Democrat, could end by Thursday — if Poliquin’s gambit to stop the count fails.

Poliquin had a slight lead in the first round of voting last week, gaining 46.3 percent of votes to Golden’s 45.6 percent. But voters who picked one of the two independents first and expressed a preference for Poliquin or Golden in later rankings could decide the ranked-choice election.

Poliquin’s constitutional claims haven’t been tested specifically yet in Maine, but certain elements have been tested elsewhere. The lawsuit from Poliquin and three of his supporters asks the ranked-choice count be stopped and the incumbent be declared the winner on the grounds that the voting method enshrined by Maine in 2016 violates the U.S. Constitution and other laws. They also want a temporary order to stop the count.

The first issue is the crux of the case; the second is what will be argued in Bangor today. Poliquin’s lawsuit claims that ranked-choice voting violates the First and 14th Amendments of the U.S. Constitution, which guarantee rights to free association and equal protection.

While ranked-choice voting has gone through courts three times since it was passed in Maine, no court has affirmatively decided that the method is constitutional in general elections for congressional seats. The Maine Supreme Judicial Court issued an advisory opinion last year saying it was unconstitutional in general elections for state offices.

However, the state’s high court green-lighted the method for the June primaries. Before the primaries, the Maine Republican Party went into federal court to make similar constitutional claims to Poliquin’s about ranked-choice voting that were quickly tossed by a judge.

Poliquin’s lawsuit makes one more constitutional claim that looks unsupported, citing one line in a federal case from 1970 to claim that Dunlap has violated part of the Constitution by not seating the incumbent after his first-round plurality.

But another part of that case says pluralities are “permitted” — not necessarily required — for a winner to be declared. Louisiana has runoffs for congressional seats if no candidate reaches 50 percent of votes. That’s effectively what Maine now requires — just instantly.

Golden and allies are arguing that voters who ranked choices would be partially disenfranchised if Poliquin prevails. Golden’s legal team is arguing against Poliquin’s bid to stop the count, stating in a brief that the incumbent hasn’t demonstrated harm, is trying to “change the rules after the election is over” and is unlikely to prevail on the merits of the case.

The Democrat’s side also brought forward affidavits from voters who ranked either independent Tiffany Bond or independent Will Hoar ahead of Golden, but who would have voted for Golden if ranked-choice voting wasn’t in play. Bond submitted a brief to that effect, too. It’s hard to see what the remedy for these voters would be if Poliquin has his way.

In a press conference on Tuesday, Poliquin denied that he was bringing the suit for electoral reasons and pitched it as a way to test the untested constitutional questions around ranked-choice voting. But exit polling conducted by the Bangor Daily News gave Golden the best chance to prevail on the ranked-choice count. We may see soon enough.


Reading list

— Maine student test scores declined in three key subject areas. Maine Public reports that statewide Maine Education Assessment Test results for students in third through 11th grades showed lower scores in math, science and English. The results show that about 50 percent of students met or exceeded state standards in English during the past school year, down from almost 53 percent the year before. In science, nearly 59 percent of students met state standards, down from almost 62 percent. In math, only 37 percent of students met or exceeded state standards, down from almost 39 percent. Here is their soundtrack.

— The North Woods and Waters National Monument will help pay someone to find jobs in the Katahdin region. A portion of the monument’s $350,569 annual payment in lieu of taxes to Penobscot County will fund an economic development director to work for East Millinocket, Medway, Millinocket, Mount Chase, Patten and Stacyville, The region’s last effort to have one economic development director focusing on East Millinocket, Medway and Millinocket — the Millinocket Area Growth and Investment Council — ended in 2007 due to a lack of funding.

— The president is getting sued by a U.S. network, sparring verbally with European leaders and contemplating the ouster of his homeland security chief. CNN on Tuesday sued President Donald Trump’s administration demanding that correspondent Jim Acosta’s credentials to cover the White House be returned because it violates the constitutional right of freedom of the press. Meanwhile, Trump took a jab at French President Emmanuel Macron, tweeting that the U.S. military had to rescue France during both world wars. A senior aide to the French president said he was glad that Trump had taken the time to study some history. Former Belgium Prime Minister Guy Verhofstadt later chided Trump for misunderstanding history on his own Twitter account. On the homefront, the Washington Post reports that Trump has told advisers he has decided to remove Homeland Security Secretary Kirstjen Nielsen, and her departure from the administration is likely to occur in the coming weeks, if not sooner.


Rescue tales

It’s hard not to be glum in Maine in November. The skies are mostly gray. Biting winds bring the kind of cold that’s more needling than bracing. The roads get more dangerous. This year, we don’t even get a respite from political elbow jabbing that clearing Election Day usually offers.

We need some stories with happy endings.

Unless you hate animals, the BDN has you covered. First, we have the tale of Fred the cat, a skittish creature who spent a couple of days in a hole until Bangor firefighters freed him. If you want something on a grander scale, you can click here to read about Maine horses finding happy lives in retirement.

For something flightier — and the answer to questions about how to feed a monarch butterfly at home — check out this uplifting migration saga. And if animals are not your thing, here’s the tale of three hunters rescued from a bog in New Gloucester.

If you don’t need them now, clip and save them for the next nasty November day. You won’t have to wait long. Here’s my soundtrack. — Robert Long


Still can’t get enough ranked-choice voting?

The BDN has created a special newsletter to provide updates and context on the voting system, its application in Maine elections, legal challenges, voter feedback and pretty much all things ranked choice. For a free subscription, click here.


Correction

In Tuesday’s newsletter version of Daily Brief, I wrote that there are 151 elected members of the Legislature, when there are, in fact, 186. I temporarily forgot the Senate. Here is their soundtrack. — Robert Long

Today’s Daily Brief was written by Alex Acquisto and Robert Long. If you’re reading this on the BDN’s website or were forwarded it, click here to receive Maine’s leading newsletter on state politics via email on weekday mornings. Click here to subscribe to the BDN.

To reach us, do not reply directly to this newsletter, but email us directly at aacquisto@bangordailynews.com, mshepherd@bangordailynews.com or rlong@bangordailynews.com.


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